RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2574-15T5

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.W., SVP-131-00.

Argued October 2, 2018 – Decided November 2, 2018

Before Judges Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Docket No. SVP-131-00.

Susan Remis Silver, Assistant Deputy Public Defender, 

argued the cause for appellant T.W. (Joseph E. Krakora, 

Public Defender, attorney; Susan Remis Silver, on the 

brief).

Stephen J. Slocum, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Stephen J. Slocum, on 

the brief).

PER CURIAM

T.W. is a sixty-three-year-old man who has been civilly committed since 

2000 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24

to -27.38. He appeals from judgments entered on January 27, 2016 and October 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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17, 2017, following his most recent civil commitment review hearing. T.W. 

argues that those two judgments relied on a hearsay statement by his wife, which

has now been recanted, and that the State's experts relied on hearsay regarding 

sexual assault charges that had been dismissed. Because the current record does 

not adequately address whether and to what extent the most recent judgments 

were based on hearsay, including the wife's statement, and whether the wife's

statement is still reliable, we remand for a re-hearing of the civil commitment 

review.

I

In July 1974, T.W. was arrested and charged in connection with a series 

of attacks against six different women committed between March and May 1974. 

All six of those events involved forced entries into homes. In two of the 

situations, T.W. forcefully raped two victims, and in three different situations 

he physically assaulted three other victims. T.W. pled guilty to two counts of 

rape, attempted rape, three counts of breaking and entering, and assault. He was 

sentenced to thirty years in prison. In January 1983, T.W. was paroled.

In September 1983, he was arrested and charged with three attacks on 

three separate women committed in August 1983. The State dismissed the 

sexual assault charges related to two of the attacks. Thereafter, in 1984, T.W. 
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was convicted of robbery stemming from charges that he attacked a woman in a 

parking lot and unsuccessfully tried to pull her into a stairwell. The victim 

escaped, and T.W. stole her purse. He was sentenced to twenty years in prison.

T.W. was first civilly committed under the SVPA in 2000. He has had a 

series of review hearings, and his commitment has been continued. We have 

reviewed and affirmed at least three of those judgments of continued civil 

commitment. In re Civil Commitment of T.W., No. A-2712-11 (App. Div. June 

15, 2012); In re Civil Commitment of T.Q.W., No. A-3904-04 (App. Div. Nov. 

4, 2005); and In re Civil Commitment of T.Q.W., No. A-3360-03 (App. Div. 

Oct. 13, 2004).

At a review hearing conducted on January 7, 2004, T.W.'s wife testified. 

The wife was apparently called by T.W.'s counsel to explain that if released, 

T.W. would be living with her. She testified that she had met T.W. in 1998 

while he was incarcerated and that they had married in 2002. The wife also 

explained that she was aware of T.W.'s criminal history because T.W. had told 

her about his past criminal conduct, including that he had raped women.

On cross-examination by a deputy attorney general, the following 

questions and answers were given:

Q. You say that [T.W.] has discussed his crimes with 

you in detail.
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A. Absolutely, yes.

Q. Has admitted to you that he raped in 1983?

A. Yes.

The judge conducting the review hearing then followed up and the following 

exchange took place:

Q. Ms. [W.], do I understand you correctly that you 

have heard from [T.W.] that he raped in 1983?

A. Yes.

Q. He has acknowledged rapes in 1983 to you?

A. Yes.

T.W.'s most recent review hearing was held on January 11, 2016. At that 

hearing, the State presented expert testimony from a psychologist, Dr. Christine

Zavalis, and a psychiatrist, Dr. Howard Gilman. T.W. called psychologist Dr. 

Barry Zakireh.

Both of the State's experts discussed T.W.'s criminal history, including his 

convictions for rapes in 1974 and their understanding of the three offenses in 

1983. The State's experts pointed out that T.W. was only convicted of robbery 

in 1983, and they both noted that T.W. denied that the robbery was sexual in 

nature. Nevertheless, in offering their opinions as to T.W.'s mental status and 
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likelihood of committing sexual assaults if released, the State's experts both 

discussed and analyzed the 1983 charges as sexual assaults. In so doing, they 

referenced the criminal record of the 1983 incidents. Both experts also testified 

that they relied on the type of information normally relied on by experts in their 

field.

Dr. Zavalis then diagnosed T.W. as suffering from a paraphilic disorder 

(non-consent), voyeuristic disorder, and antisocial personality disorder. 

Dr. Gilman diagnosed T.W. with sexual sadism, voyeuristic disorder, and 

antisocial personality disorder. Both doctors opined that T.W. would likely pose 

a high risk of committing a sexually violent act if released.

In contrast, Dr. Zakireh, T.W.'s expert, opined that T.W. was not highly 

likely to reoffend if released in 2016. Dr. Zakireh diagnosed T.W. with 

antisocial personality disorder and voyeuristic disorder. Dr. Zakireh, however, 

noted that T.W. was over fifty years of age and in poor physical health. Thus, 

he reasoned that T.W. had a low risk of reoffending.

The trial court issued its initial decision on January 27, 2016, and 

explained the reasons for its ruling on the record. The court relied on the 

testimony given by the State's experts and rejected the testimony offered by 

T.W.'s expert. In considering the use of the 1983 offenses as sexual in nature, 
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the court reviewed the record of the testimony of T.W.'s wife in 2004. 

Specifically, the court read into the record the transcripts of the wife's testimony 

given at the 2004 recommitment hearing, when the wife testified that T.W. had 

admitted to her that he had engaged in "rapes" in 1983. The court also noted 

that, under certain circumstances, charges that do not result in convictions can 

be used clinically by experts.

The court then credited the State's experts' diagnosis of paraphilic disorder 

(non-consent) and antisocial personality disorders. It also accepted the State's 

experts' opinions and found that T.W. still had a highly likely risk of committing 

a sexually violent offense if released. Thus, the court found that the State had 

proven each of the elements required by the SVPA by clear and convincing 

evidence. Accordingly, on January 27, 2016, the court entered a judgment 

continuing T.W.'s commitment.

T.W. appealed from the January 27, 2016 judgment. While his appeal was 

pending, in July 2017, T.W. moved to supplement the record with a certification 

from his wife. The certification was dated September 15, 2016, and in it the 

wife recanted her testimony from the 2004 hearing. Specifically, the wife 

certified that T.W. had never told her he committed any rape in 1983. She also 

certified that she had been confused by the questioning in 2004. In August 2017, 
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we remanded this matter and directed the trial court to consider the wife's 

certification and issue a new decision.

On remand, the court did not conduct a new hearing. Instead, because the 

court learned that T.W.'s wife had since passed away, the court decided a hearing 

was not necessary. The court, therefore, went on the record on October 17, 

2017, to address the remand. Apparently, neither the State nor counsel for T.W. 

were given notice of the trial court's decision not to conduct a hearing. Instead, 

the court went on the record without any appearances and explained that it would 

issue a new judgment continuing T.W.'s civil commitment.

The court gave two bases for that decision. First, the court explained that 

it was not convinced that the recanting certification was reliable and, therefore, 

the testimony from the 2004 hearing was still valid. Second, the court reasoned 

that the State's experts who testified at the January 11, 2016 review hearing had 

not relied on the wife's statement concerning T.W.'s admission of rapes in 1983. 

The court pointed out that both of the State's experts understood that T.W. was 

denying that he had engaged in any sexual assaults in 1983, and they were 

relying on the criminal record rather than the wife's statement. Accordingly, on 

October 17, 2017, the trial court issued a new judgment continuing T.W.'s civil 

commitment to the Special Treatment Unit.
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II

T.W. now appeals from both the January 27, 2016 and the October 17, 

2017 judgments. He makes four arguments: (1) his most recent commitment 

was based on inadmissible and incompetent hearsay; (2) the trial court's decision 

on remand is based on the wife's inadmissible and unreliable hearsay and the 

State's experts also relied on inadmissible hearsay from the criminal record; (3) 

the commitment judgment should be reversed because the State's experts offered 

only net opinions; and (4) the State introduced no evidence that T.W. has a 

current mental abnormality or personality disorder that makes him a current risk 

of being highly likely to sexually offend.

The Legislature's purpose in enacting the SVPA was "to protect other 

members of society from the danger posed by sexually violent predators." In re 

Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (citing N.J.S.A. 30:4-27.25). 

Thus, the SVPA provides for the involuntary commitment of any person found 

by the court to be a sexually violent predator within the meaning of the statute. 

N.J.S.A. 30:4-27.32(a). The statute defines a sexually violent predator as:

[A] person who has been convicted, adjudicated 

delinquent or found not guilty by reason of insanity for 

commission of a sexually violent offense . . . and 

suffers from a mental abnormality or personality 

disorder that makes the person likely to engage in acts 
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of sexual violence if not confined in a secure facility 

for control, care and treatment.

[N.J.S.A. 30:4-27.26.]

To justify commitment of an individual under the SVPA, the State must 

prove "the individual has serious difficulty in controlling sexually harmful 

behavior such that it is highly likely that he or she will not control his or her 

sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 

N.J. 109, 132 (2002). The court must consider the individual's "present serious 

difficulty with control over dangerous sexual behavior" and the State must 

establish "by clear and convincing evidence . . . that it is highly likely that the 

person . . . will reoffend." Id. at 132-34.

Our review of a trial court's decision in a commitment proceeding under 

the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 

N.J. Super. 619, 630 (App. Div. 2009) (first citing In re Civil Commitment of 

J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff’d, 197 N.J. 563 (2009);

then citing In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.

2003)), aff’d, 204 N.J. 179 (2010). Further, we "must give the 'utmost deference' 

to the reviewing judge's determination of the appropriate balancing of societal 

interest and individual liberty." Ibid. (quoting In re Commitment of J.P., 339 

N.J. Super. 443, 459 (App. Div. 2001)). Modification is only proper on appeal
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when the record reveals a clear abuse of discretion. Ibid. (citing J.M.B., 395 

N.J. Super. at 90). Accordingly, a reviewing court has a responsibility to 

"canvass the record, inclusive of the expert testimony, to determine whether the 

findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 

146 N.J. 31, 58-59 (1996)).

At the commitment hearing, the State must establish three elements: (1) 

that the individual has been convicted of a sexually violent offense; (2) that he 

or she suffers from a mental abnormality or personality disorder; and (3) that as 

a result of his or her psychiatric abnormality or disorder "it is highly likely that 

the individual will not control his or her sexually violent behavior and will 

reoffend." In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting 

W.Z., 173 N.J. at 130).

Here, T.W.'s principal argument is that the most recent judgments relied 

on the inadmissible and unreliable hearsay testimony of his now-deceased wife. 

T.W. also argues that the State's experts based their opinions on hearsay 

consisting of police reports, victim statements, and other items from the criminal 

record concerning the dismissed sexual assault charges from 1983.

In opposition, the State contends that it did not use the wife's testimony to 

meet its burden at the January 11, 2016 hearing. It also argues that experts are 
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permitted to rely on hearsay information, such as presentence reports, police 

reports, and prior psychological evaluations, in forming opinions concerning an 

individual's mental status because such evidence is of the type that experts in 

that field normally rely upon.

In certain circumstances, hearsay may be relied upon by experts if the 

information is of a type "reasonably relied upon by experts in the particular field 

in forming opinions or inferences upon the subject." State v. Torres, 183 N.J. 

554, 576 (2005) (quoting N.J.R.E. 703). For example, hearsay from presentence 

reports can form the basis of an expert opinion because "such evidence [is] of a 

type reasonably relied on by mental experts in formulating their evaluations of 

an individual's mental condition." In re Civil Commitment of J.H.M., 367 N.J. 

Super. 599, 612 (App. Div. 2003).

Nevertheless, due process liberty interests can come into play. Therefore, 

a court must assesses the reliability of the expert's testimony. "[T]here is a 

tipping point where due process is violated by the use of hearsay." In re 

Commitment of G.G.N., 372 N.J. Super. 42, 58 (App. Div. 2004). If an 

"unproven allegation . . . provide[s] a significant building block" in an expert 

opinion, "it would present a troubling issue since significant state action, such 

as SVPA commitment, cannot and should not be based on unproven allegations 
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of misconduct." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 

(App. Div. 2005). Accordingly,

[w]e expect the SVPA hearing judges to carefully 

scrutinize [prior clinical evaluation material] so that its 

use is not abused. And the same may be said of factual 

information concerning the committee's offenses 

contained in [presentence investigation reports] or in 

medical evaluations, where the committee denies that 

the crime took place as reported. The fact that the 

testifying expert parrots Rule 703, that such hearsay is 

of a type "reasonably relied upon" by experts in their 

field, does not shield all such hearsay from scrutiny. . . . 

Important rights are at stake and judicious use of 

hearsay must be the standard.

[Id. at 492-93 (citation omitted).]

The current record does not allow us to adequately review what the State's 

experts relied upon and the basis for their testimony. At the review hearing 

conducted in January 2016, both of the State's experts made reference to and 

relied on events in 1983. In accepting that testimony, the trial court relied on 

the wife's testimony given in 2004. Because there was no evidentiary hearing 

on the remand, we cannot determine whether the State's experts relied on the 

now-deceased wife's testimony from 2004 or on other independent information. 

Moreover, if the State's experts did not rely on the wife's testimony, then the 

trial court needs to assess the factual basis for their testimony without regard to 

the wife's hearsay. Such an assessment has not been made because, as we point 
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out, the trial court relied on the wife's testimony in finding the experts' testimony 

reliable. Accordingly, we remand for a re-hearing.

At the re-hearing, the State is directed to submit new expert reports 

addressing whether T.W. continues to suffer from a mental abnormality or 

personality disorder and whether he cannot control his sexually violent behavior 

and would be highly likely to reoffend if released. The experts will need to 

detail whether they are relying on the statement made by the wife concerning 

T.W.'s admission that he committed "rapes" in 1983. If the experts are not 

relying on that information, they need to identify the specific information they 

are relying on concerning the events in 1983. T.W. should then be allowed to 

respond, including addressing why the wife's recanting certification, dated 

September 15, 2016, makes her testimony from 2004 unreliable.

On a more complete record, the trial court can then determine (1) whether 

and to what extent the wife's testimony from 2004 is still reliable in light of her 

certification from 2016, and (2) whether there is an independent, reliable basis 

to accept the experts' testimony concerning the events in 1983 if they are not 

relying on the wife's testimony.
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Thus, this matter is remanded for a re-hearing. We further direct that the 

hearing be conducted within sixty days of the date of this opinion and that a new 

judgment be entered no later than ninety days from the date of this opinion.

Remanded. We do not retain jurisdiction.